– used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations (see your earlier RSF release on this, which I cannot legally reproduce here for fear of a contempt charge);

– proposed new laws reversing the onus of proof about the purpose of their journey for anyone, including journalists, travelling to Syria or Iraq.

Major media groups have expressed their alarm at the national security proposals in a joint submission stating that the new surveillance powers and measures against whistleblowers would represent an affront to a free press.

Over the same period the judiciary has presided over the jailing of a journalist for breaching a suppression order, the conviction of a blogger for another breach, and several instances of journalists facing contempt charges over refusal to reveal their sources. There have also been numerous suppression orders issued, including this one over a Victorian gangland trial.

Other disturbing signs have been actions by police and departmental chiefs to intimidate journalists and media outlets.

The Australian Federal Police raided the Seven Network headquarters in Sydney in February, purportedly in search of evidence of chequebook journalism, triggering an official apology this week.

Defence Chief General David Hurley wrote to newly elected Palmer United Party Senator Jacqui Lambie in March, warning her not to use the media to criticise the military.

Freelance journalist Asher Wolf received a threatening letter from the secretary for the Department of Immigration and Border Protection (DIBP) Martin Bowles following her co-written article for the Guardian Australia on February 19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details.’ The public service mandarin’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’ and demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices. See the letter here: WolfDIBP to The Guardian – A Wolf. The Sydney Morning Herald later reported that the DIBP was hiring private contractors to trawl social media and order pro-asylum seeker activists to remove their protesting posts.

I am sure you will agree that these developments are not what we would expect to be unfolding in a Western democracy like Australia where media freedom has previously been at a level respected by the international community.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

The arrest and court appearance of a man accused of the rape and murder of Melbourne ABC staffer Jill Meagher has sparked a spate of commentary on social media – much of it potentially prejudicial to the suspect’s upcoming trial. Here is an excerpt from my new book – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online(Allen & Unwin, 2012) – explaining the basic principles of sub judice contempt for lay users of social media. See also Julie Posetti’s innovative and useful Storify on this.

Victoria Police are also struggling to cope with prejudicial comments about the accused on their Facebook site. See my earlier blog on similar problems with the Queensland Police Facebook page where they have faced similar challenges trying to moderate prejudicial comments.

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Sub judice – time to brush up on your Latin

The most frustrating area of contempt law for the traditional media has been sub judice contempt – publishing prejudicial material that might reduce the chance of a fair trial. First Amendment rights in the US have given the media immunity in recent times, but ‘trial by media’ can prompt a mistrial and lawyers can be disciplined if they make prejudicial statements during a trial. ‘Sub judice’ comes from the Latin meaning ‘under justice’ and has been prosecuted most often in the UK and Commonwealth countries, although some European countries like Denmark have laws against publications that might seriously damage a trial.

In 2011, the judge presiding over the trial of a conservative politician for a false expenses claim in Britain referred to the Attorney-General a potentially prejudicial tweet about the case by a rival politician. High-profile Labour peer Lord Sugar tweeted to his 300,000 followers on the second day of the trial: “Lord Taylor, Tory Peer in court on expenses fiddle. Wonder if he will get off in comparison to Labour MPs who were sent to jail?” The Telegraph quoted Justice Saunders saying: “I was concerned that if seen by a juror it might influence their approach to the case… I reported the matter to the Attorney-General not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites … posed a risk of prejudicing the fairness of a trial, and if so whether there were steps which could be taken to minimise that risk.”

International media law firm Taylor Wessing revealed in 2011 that they had defend a website against contempt allegations over prejudicial user-generated posts on a message board just a few weeks before a criminal fraud trial. They had to take down the messages and the jury had to be warned not to do Internet research. They pointed out that bloggers and social media users were liable for their publications even when they did not intend to damage a trial. From the moment someone has been arrested in a criminal case, reports about the matter are seriously limited in many countries. Authorities can prosecute for this kind of contempt if there is a ‘substantial risk’ that justice will be prejudiced in the case.

While the mainstream media are the most common targets of such actions, the size of the audience for many blogs and social media commentators will increasingly make them vulnerable. The Victorian Government Solicitor’s Office advises websites to take down materials related to an upcoming case in the lead-up to a trial. The most sensitive material is anything implying the guilt or innocence of the accused, confessions, photo identification of the accused, and republishing reports of earlier hearings. A public interest defence might be available for publication of material on a matter of overwhelming public importance, but you should never rely upon this defence without legal advice.

…

Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words).

Australian journalism shield laws put to the test… and upheld –18.07.2012 and 20.07.2012

In the Federal Court, the Commonwealth and attorneys have accepted journalist privilege inherent in Australian evidentiary shield laws for journalists under federal law, enabling the journalist who broke the Slipper diary scandal to keep private documents which would reveal the identity of his source.

However, in an unusual move, hearsay evidence (in this case, text messages downloaded from Slipper staffer James Ashby’s mobile phone) will be used within the upcoming trial, both to substantiate Ashby’s claims of sexual harassment, and potentially prove that the person journalist Steve Lewis was trying to protect is Ashby himself.

Lewis initially tried to use the new shield laws to keep from providing assorted documents including text messages between himself and other parties involved in the scandal, part of a batch he was subpoenaed to provide to the court last week.

Federal Court Justice Steven Rares initially rejected this first claim, arguing that journalistic privilege did not apply as it was likely that the public already knew the identity of Lewis’ informant:

“The text messages suggested that Mr Lewis requested Mr Ashby to provide Mr Lewis with copies of extracts from Mr Slipper’s diary for the period between 31 December 2009 and 9 January 2010 and 10 and 11 November 2010 and that Mr Ashby had provided those to Mr Lewis. In effect, Mr Slipper’s argument amounted to asking Mr Lewis to confirm whether or not his source was Mr Ashby.”

The Justice also expressed mixed feelings about the new laws, saying that while they have created a statutory right for journalists to protect their sources, “I am of opinion that it would be unrealistic to construe s 126H(1) in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source…”

Lawyers for journalist Steve Lewis have argued that he should not have to provide documents to the court on the grounds that they may reveal a confidential source, the first real test of the ‘Shield Laws’ introduced by government last year.

Lewis, who was in court today, has been subpoenaed to produce emails, text messages and phone records to and from former Howard government minister Mal Brough; James Ashby’s media advisor, Anthony McClellan; and another staffer, Karen Doane, ie all the communications he had with Peter Slipper’s staffer James Ashby

In April Lewis wrote a newspaper article that revealed Slipper’s media adviser, James Ashby, had filed a sexual harassment case against his employer, prompting Slipper to claim the two had conspired to damage his reputation and publicise the case against him.

Both Slipper and the Federal government are trying to have the case declared an abuse of process.

I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words). Australian and international cases and commentary are welcome.

I’ve already launched the CONTEMPT update page. Here is the DEFAMATION update page – with this first set of contributions from law and journalism student Fiona Self (thanks, Fiona!).

A man who called radio station 2HD Newcastle and made defamatory comments about an ABC reporter has been ordered to pay 80 per cent of the resulting pay out, plus the cost of two trials in the New South Wales Supreme Court.

The claims that caller Craig Stephens made were found to be “untrue in every respect” in the proceedings and prompted the ABC broadcaster to request an apology which was carried out on air.

In an assessment of the 2HD broadcaster who took the call, it was found that he had no reasonable suspicion to use the ‘kill button’ which was primed with a seven second delay, and thus should not be held entirely responsible for the resulting lawsuit; especially considering that Stephens was found not to be a ‘satisfactory witness’ in the proceedings, denying some of the evidence presented in court (including the email in which he threatened to kill himself in front of the head office of 2HD if he was sued, for the purpose of damaging the stations ratings and advertising).

Stephens also attempted to use the defences of fair comment/ honest opinion and qualified privilege, neither of which were upheld.

The court decided that Stephens should contribute to almost all of the damages settled upon, with 2HD paying the remaining 20 per cent, with the presiding judge saying:

“…2HD must share some responsibility simply as a result of enabling the publication by the talkback format.”

Chris Cairns (UK cricket player) sued Lalit Modi, former chairman of the Indian Premier League, who tweeted on 10 January 2010 “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.”

The tweet was seen by less than 100 of Modi’s followers, but after the online cricket publication reported by essence of the tweet, it’s estimated to have been ready by somewhere between 450 – 1500 people.

UK Justice David Bean: Although publication was limited, that does not mean that damages should be reduced to trivial amounts.

I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words).

Let’s get started with this update on Contempt law – both Australian and international – with this first set of contributions from law and journalism student Edward Fleetwood (thanks, Edward!).

– PC Harwood was charged with the manslaughter of Ian Tomlinson the G20 protest in London

– Judgement concerns two reports on Mail’s Online concerning alleged incidents of violence on the part of defendant, PC Harwood

– On 22 May 2012 – Justice Fulford decided that the prosecution was not entitled present evidence related to two previous incidents so as not to prejudice the jury

25 May 2005 when the defendant allegedly used unnecessary force in the arrest of Mr Owusu-Afriye

24 November 2008 defendant allegedly twisted the arm of Mr Samms when arresting him

– However, a number of newspaper websites had articles that included details about the 2 incidents

Additionally social networking sites such as Facebook had published “posts” that referred to these allegations and websites and blogs run by particular individuals also expressed their own personal opinions

– 31 May 2012 – Justice Fulford sent a letter to the main websites advising them to remove the relevant articles otherwise they can make submissions before the judge

– 15 June 2012 – Justice Fulford after hearing media submissions ordered publications to be removed by 8:00am Monday 18 June 2012 before the jurors began to arrive, otherwise those responsible would be in contempt

– Once the trial began, most news sites, Wikipedia and most “bloggers” had complied, EXCEPT The Mail Online which still had 2 articles online, dated 23 July 2010 and 4 September 2010

– Paras [22]-[35] detail the submissions of the Mail Online and the Crown Prosecution Service

– Justice Fulford posed two questions to determine whether the Mail Online was in contempt

Are the two articles in the Mail Online publications for the purposes of Contempt of Court Act (CCA) section 2(1)?

Section 2(3) of CCA “at the time of the publication” encompasses the entire period during which the material is available on a website from the moment of its first appearance through to when it was withdrawn

2 articles continued to be “published” whilst the proceedings were active

Do the two articles in the Mail Online create substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced?

In determining whether PC Harwood’s push of Ian Tomlinson was reasonable force the jurors had to assess his state of mind at the time

If jurors discovered that PC Harwood had an alleged history of violent and irrational behaviour then their judgement of him may be prejudiced

A juror, looking for contemporary articles on the trial, could easily come across the 2 articles THEREFORE the publication constituted a substantial risk of impeding or prejudicing the course of justice

– What steps should the court take?

Approach taken by court will depend on circumstances

Judge may refer matter to Attorney General for possible prosecution

Judge may suggest to party to make an application to the High Court for an injunction

However, Justice Fulford believes that Crown Court (trail court) should deal with the matter as any other remedy will likely cause “delay, expense and prejudice to the defendant and the witnesses”

Justice Fulford satisfied issuing an injunction for relatively short period of the trial was necessary and proportionate

Also not incompatible with the right of freedom of expression under Article 10 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms

On 16 July 2012 – Justice Fulford ordered the removal of the two articles

—

House Committee looking into embattled MP Craig Thomson was concerned confidential information was leaked to a journalist

Title: Report concerning the possible unauthorised disclosure of the internal proceedings of the Committee

Authors: House of Representatives Standing Committee of Privileges and Members’ Interests

Date: August 2012

Location: Canberra, Australia

Link:

– On 24 May 2012 Michelle Gratten, a journalist, published articles in the online version of The Age and in the print edition of The Age of 24 May 2012 (Appendix A)

– The articles included unauthorised disclosure of the internal proceedings of the Committee’s private meeting held on 23 May 2012

– Asked by the Committee about the sources, Ms Gratten would not discuss any matters to do with sources

Ms Gratten stated: “…the whole question of sourcing of material involves confidentiality and that journalists do not breach that confidentiality. This is how we operate in my trade… We accept the consequences of them.”

– Committee reiterates the view from a 1994 report that “it is also important that where it is necessary to do so the Houses are willing to proceed against those who knowingly publish the material”

– Committee made it clear to the Press Gallery journalists and their publishers that a potential contempt can be committed in the act of publishing material from parliamentary committees that has not been authorised for publication

– As noted in 1994 Report the House has a number of remedies available for contempt

Withdrawal of access to the building

Briefing for members of the Parliamentary Press Gallery on the authorised disclosure of committee evidence and proceedings

Committee recommends

– Adoption of Appendix C

(1)(f) Where an unauthorised disclosurehas been made the Committee should consider

(i) Whether it is appropriate to make a finding of contempt in relation to the publication of evidence or proceedings

AND (ii) whether recommendations are made to the House for the imposition of appropriate penalties on the journalists or news media involved

– Process of approval of Parliamentary Press Gallery/Media Pass so that all pass holders are aware of prohibition of unauthorised disclosure of committee proceedings

—–

California has passed a law prohibiting jurors from using social media and the Internet to research or disseminate information

– Sponsor of the legislation, Assembly Member Felipe Fuentes said “Although current law arguably prohibits the use of electronic/wireless communication devices to improperly communicate, disseminate information or research, the fact that this kind of communication is not expressly included in current law has resulted in increased problems in courts across the county.”

– The new law has been in effect since 1 January 2012

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Mauritian newspaper editor appealed directly to the Privy Council after being found in contempt for scandalising the court

– Dharmanand Dhooharika, Editor-in-Chief of Mauritian French-language Samedi Plus has appealed directly to the Privy Council

– Mr Dhooharika was sentenced to three months imprisonment for scandalising the court after his paper ran articles that contained allegations about how the Chief Justice handled a particular case, Paradise litigation

Articles contained allegations made by one of the parties to the case, Dev Hurnam and his comments about his attempt to have the Chief Justice charged with contempt of court

– In this petition to appeal to the Privy Council Mr Dhooharika is arguing that

The offence of scandalising the court is contrary to the right to freedom of speech guaranteed in the Mauritian constitution

Mr Dhooharika was unable to give evidence in his defence

The Supreme Court accepted without question that the Mr Hurnam’s comments were “highly defamatory”

The charges were only brought against Mr Dhooharika and Samedi Plus even though other Mauritian media outlets report Mr Hurnam’s allegations

—-

Ignorance of the law no defence for a journalist who did not ask for permission to communicate with backpacker murderer

– Before Peter Norris Dupas’ murder trial in the Supreme Court of Victoria an application was made on his behalf for a permanent stay of the trial due to pre-trial publicity

– Trial judge, Cummins J rejected the application and his Honour gave detailed directions to the jury before, during and after the trial to exclude all information other than evidence presented during the trial

– Jury found the accused guilty

– He appealed and the Victorian Court of Appeal ordered a new trial

– He then appealed to the High Court on the question of whether a stay of the trial or a retrial should have been granted

– There was substantial media publicity for Dupas’ trial as a result of two prior murder convictions, appeals for those convictions and the third murder charge

– Over seven years coverage included

Information on seven internet sites

Approximately 120 newspaper articles

Four books

A number of television programs

– Although there was substantial pre-trial publicity, trial judge Cummins J concluded that he had “very responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case.”

– At paragraph 21, the High Court includes the direction that Cummins J gave to the jury

Among other directions, his Honour instructed the jury that they should not decide the case on anything outside the court, do their own homework or look up anything on the internet

– In his application to the High Court, Dupas sought to rely on the example given by Deane, Gaudron and McHugh in R v Glennon that there could be an ‘extreme’ or ‘singular’ case where a stay would be granted due to a “sustained media campaign of vilification and prejudgment”

– However, the High Court dismissed this application and said:

“In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”

– Lord Taylor was on trial for expenses fraud, the last in a series of trials of the an expenses scandal

– Trial judge, Justice Saunders suppressed any reporting on the trial

– However, Lord Sugar, a Labour peer and host of the UK version of the Apprentice, on the second day of the trial tweeted:

‘Lord Taylor, Tory peer, in court over alleged expenses fiddle. Wonder if he will get off as he is a Tory compared to Labour MP who was sent to jail.’

– When Justice Saunders was informed of the tweet he cleared the court and said “can someone contact Lord Sugar and get that removed”.

– A spokesman for Lord Sugar said he was unaware of any reporting restrictions as he was out of the country and he removed the tweet within 20 minutes

– His Honour also referred the matter to Attorney General Dominic Grieve who ultimately decided not to bring charges against Lord Sugar

– In referring the matter, Justice Saunders said “I reported the matter to the attorney general not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites of high profile figures relating to trials which were going to take place or were taking place posed a risk of prejudicing the fairness of a trial.

– “And if so whether there were steps that could be taken to minimise that risk.”

—-

Twitter may be in contempt for not handing over the tweets of an Occupy Wall Street protester

– Shepard Fairey, a Los Angeles street artist, created the iconic Barack Obama “Hope” poster from a 2006 an Associate Press photograph of the former senator

– Mr Fairey claimed he had used a photo from another source

– However, in 2009 he admitted to destroying documents and submitting false images in his legal battle with AP

– In February 2012, Mr Fairey pleaded guilty to once count of criminal contempt for destroying documents, manufacturing evidence and other evidence

– 7 September 2012, Mr Fairey received a sentence of two years’ probation, a $25,000 fine and 300 hours of community service

– In a statement he said that his actions had not only been “financially and psychologically costly to myself and my family, but also helped to obscure what I was fighting for in the first place — the ability of artists everywhere to be inspired and freely create art without reprisal.”

—-

Media outlets need to be cautious about the information they publish when juries are still deliberating

– From the information published in the respective papers, his Honour determined that there was a real risk that the jury would have thought that the additional material was relevant to the remaining count of attempting to abduct Rachel Cowles

Essentially, the allegations of Belfield’s interest in and depraved conduct to young girls was highly prejudicial to the count that the jury was still considering

– Finding the papers in contempt of court the judge invited submissions from the Attorney General and counsel for the two newspaper on the penalty

—-

(Posted earlier)

New Zealand Courts will temporarily postpone open justice to ensure a fair trial

– 9 December 2010 Winkelmann J, Chief High Court Judge, delivered a judgement in R v B, which was a pre-trial ruling as part of the highly published Hamed proceedings

– At the top of the 9 December judgement read:

THE JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

– Vincent Siemer, who owns two identical websites, published an article Judge or be Judged on his website that discussed the case, the suppression order and included a hyperlink to the judgement

– The judgement discusses the differences between the courts in New Zealand and England

New Zealand – “In recognising the inherent power to postpone publication, New Zealand law has settled on striking the balance in favour of the right to a fair trial whenever it conflicts with freedom of expression and the principle of open justice, and then only on a limited and temporary basis. And, significantly, as we shall explain, the legislature has not chosen to intervene.” [78]

English position – courts do not have an inherent power to make non-publication orders and can only do so when it is authorised by statute (Contempt of Court Act 1981)

– Explanation at [71] that criminal proceedings have become subject of increasingly intense public scrutiny due to established and social media

– Result – appeal dismissed, Siemer was given a sentence of 6 weeks imprisonment

—-

Similar to shredding of important documents, destruction of material on social media may amount to contempt

Title: Discovery in the information Age – The interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege

– Queensland Speaker Fiona Simpson warned that the signing of an e-petition multiple times could constitute contempt of parliament

– The Speaker said that she saw that on an e-petition to preserve the current Civil Partnerships legislation a person’s name had appeared 17 times

– She instructed the Clerk of the Parliament, Neil Laurie to contact the person and warn them that their actions may constitute contempt

– Ms Simpson said “I am satisfied at this time with the action taken. However, should these persons attempt to undertake such an action again, I will refer the matter to the Ethics Committee as a breach of privilege and contempt.”

– Contempt of Parliament can attract a fine, and if not paid, imprisonment

—-

UK Law Commission will be examining contempt laws as it believes they are unsatisfactory in dealing with social media

– She was 23 when she was pulled by her hair into the underbrush of Newburgh Beach in Henderson County

– On the anniversary, police have warned local residents that making false statements on social media sites Topix, Facebook and Twitter is unacceptable

– “Unfortunately, upon investigation, these claims proved to be false. Those who make false statements about any open or cold cases on social sites need to be aware that charges may be sought for falsely reporting an incident.” (Kentucky State Police Trooper Corey King)

—-

Be very careful about the content on a Facebook page that you create and administer

– The page encourage people to rate the sexual performance of past partners and included sexually explicit and degrading comments about girls as young as 13

– In Bendigo Magistrates Court, Leading Senior Constable Lindsay Riley explained how a young girl, who is still under 18, had come to police with a complaint about being named and slandered on the site

– The police followed the complaint and one defendant gave full admission about creating and administering the site

– He was charged with and pleaded guilty to using a carriage service to offend and using an online information service to publish objectionable material

He also pleaded guilty to a series of unrelated traffic and theft offences

– In sentencing, Magistrate Wright said “I need to send you and others a message”

– Magistrate Wright sentenced him to 4 months jail on each of the two Facebook related charges as well separate charges of obtaining property by deception

The terms will be served concurrently for an effective sentence of 4 months

– He will appeal the sentence (NB: watch for appeal in the Victorian County Court)

A riveting session at this week’s AEJMC convention in Chicago was billed “Prejudging Justice: The News Media and Prominent Criminal Trials”, featuring high profile defence attorney Andrea D. Lyon – known as the ‘angel of death row’.

Lyon won a murder acquittal last year for Casey Anthony who was accused of killing her two-year-old daughter Caylee, a trial attracting global media attention.

Her experience in that case and many others has informed her critical view of the US approach to high profile trials, which she explains in detail in a recent article in the Reynolds Courts and Media Law Journal.

Lyon has formed the view that publicity generally hurts a criminal defendant and leads to a presumption of guilt rather than innocence in the minds of jurors.

It is worth considering the views of Lyon and her fellow panelists at a time when courts in Australia and other Commonwealth jurisdictions are looking to the US example as a potential salve to their growing concerns about prejudicial Web 2.0 coverage of trials.

One view is that the only option is to move to a US system where the solution is via instruction to jurors to avoid accessing social media materials related to the case, sequestering juries or moving trials to a new location distant from the heat of publicity.

Professor W. Joseph Campbell from American University gave an insight into the lengths US journalists have been willing to go in their coverage of sensational crimes.

The antics of newspaper journalists during the 1897 ‘sausage murder’ trial in Chicago far outstrip the more recent phone hacking sins of News of the World reporters and private eyes.

As Campbell explained, journalists were so desperate to hear the deliberations of the locked jury in this case that they lowered a reporter from the Independent by rope down an air shaft from the attic of the courthouse building so he could listen to the jurors’ discussions and relay them back to his co-conspirators using a hose.

Chicago Sun-Times courts reporter Rummana Hussain explained this would never be attempted or tolerated today, given the hurdles presented to her and other media in the recent Balfour murder trial where the victims were relatives of celebrity Jennifer Hudson, prompting substantial media attention.

Hussain was left to negotiate with the judge the reporting permissions of the whole press contingent and was able to extract the privilege of using cellphones to communicate from the court to their newsrooms via text messages.

But she could not convince him to allow live tweeting from the courtroom – only from the overflow room where the proceedings were televised.

Even that arrangement was suspended for a day by the irate beak after a reporter’s phone sounded in the court after his numerous warnings to place them in silent mode. Hussain explained she even had to play attorney and present to the court an argument on why the media should be granted access to tapes played during proceedings.

American University journalism professor John C. Watson drew upon communication news framing theory to propose that journalists should frame their court and crime stories in terms of what citizens needed to know instead of merely what the public wanted to know.

“The press create a scenario in which the defendant is assumed to be guilty,” he told the audience. “The press has framed the case from the prosecutorial perspective.”

He said the judiciary was potentially the most dangerous branch of government with real potential to deprive citizens of their constitutional rights to life, liberty and their ability to pursue happiness.

“The judicial process can kill innocent people and the press are the first line of defence against that,” he said.

“Journalists have to remember they are reporting for the primary purpose of protecting the people against their government.”

He pointed to an emerging crisis with the coverage of trials on social media, and suggested the British system where there was “no reporting until afterward” might be a preferable alternative to the US approach.

But the panel’s “star witness”, Andrea Lyon, took the line that open coverage was important to the judicial process, but must be exercised responsibly.

“The prosecution already has a lot of power – there are almost no brakes on it,” she said. “There are no brakes on framing someone. The only way we’ll have brakes is through fair reporting.”

She took issue with the privacy invasion and voyeurism of coverage in sensational trials.

She was physically assaulted twice during the Casey Anthony trial and was angered when a major newspaper republished a blog detailing the time she would arrive at court and contemptlated “the trouble they would get in for just hitting me rather than hitting me with a bat”.

She wrote in the Reynolds Courts and Media Law Journal article: “What is troubling is the public’s fascination with this case, the need to make Anthony a villain, and how the media helped feed this mob mentality.”

“They landed, heavily, on any witness who spoke up in Anthony’s favor, making witnesses extraordinarily difficult to find and interview because everyone was afraid of the backlash from the public and the prosecution,” Lyon continued.

She told the seminar she regretted the negative influence of the television program “Law and Order” on the public perception of courts and trials, as well as the rise of “expert” court commenters who typically knew little about the specific cases they were discussing but were fodder for television commentary because of their legal training.

Social media aggravated the situation, she said, with more than 100 blogs devoted to the Casey Anthony case.

Australian, New Zealand and British policymakers could learn much from this session as they contemplate a future of more open public discussion of prominent trials in social media – even if tough restrictions on the legacy media are maintained.

This “two-speed” approach might well keep the pages of the press and the airwaves of radio and television free of prejudicial material.

But it is naive to think that prospective jurors and witnesses will not venture onto blogs, Facebook and Twitter to get every salacious detail on a celebrity accused in the next big Whodunnit.

Short of effective controls across jurisdictions in cyberspace, which appears unlikely, it seems the integrity of the jury system will rely on effective instructions to jurors and better justice education for the broader citizenry.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

The resources of the Queensland Police Service Facebook fan page were stretched over the past 24 hours to cope with the public response to their announcement of an arrest of a suspect in one of Brisbane’s most compelling ‘whodunnit’ murder mysteries.

Mainstream and social media speculation about the case has been rampant since 43-year-old Allison Baden-Clay went missing on April 23. Her husband Gerard appeared in court today charged with her murder.

As I have blogged previously, the Queensland Police Service has a highly successful Facebook page which established the bulk of its 289,500 fan base during the devastating Brisbane floods in January last year. It proved an excellent community communication tool during the disaster and since then as a crime detection aid as the public volunteer leads on unsolved crimes and public safety.

But the challenge comes when Police Media announce on their Facebook page the apprehension of a suspect in a high profile case.

The problem with Facebook fan pages is that you must have the ‘comment’ function turned completely ‘on’ or ‘off’ – so the best the police can do is monitor the feed and remove offensive or prejudicial material after it has been posted.

That might be fine during an uneventful day when the police social media team can keep on top of the message flow – but when an arrest has been made in an emotion-charged crime like a murder or a child sex attack many fans want to ‘vent’.

That’s what happened with the arrest of a suspect in the murder of Sunshine Coast teenager Daniel Morcombe last August.

It happened again last night and today as, within 21 hours, more than 500 fans commented on the Police Media announcement that Baden-Clay had been charged with his wife’s murder and more than 1,500 ‘liked’ the announcement. Those 506 comments were the ones that survived the post-publication moderation process where officers in the social media unit trawl through the latest posts to delete the inappropriate ones.

The law of sub judice in Australia dictates that nothing can be published that might prejudice the trial of an accused after they have been arrested or charged. That includes any assumption of guilt (or even innocence), evidentiary material, theories about the crime, witness statements, prior convictions or character material about the accused. It even bans visual identification of the accused if that might be an issue in court. In a murder trial it usually is.

The penalty can be a criminal conviction on your record, a stiff fine and sometimes even a jail term for contempt of court.

Once the accused has appeared in court, journalists covering the matter are protected from both contempt and defamation action if they write a ‘fair and accurate’ report of the hearing, sticking to material stated in open court in the presence of the jury – if there is one.

It’s hard enough for reporters to get their heads around these rules – let alone the Facebook fans posting their theories on a murder to the police Facebook page.

Even some of the posts that have survived the police editing process to date push the boundaries of acceptable commentary on a pending case.

One stands out: “Ann Gray: Took long enough. It was obvious that he did it. Hope he rots in jail.”

That was six hours after the announcement, and obviously the moderators were running short on patience with their ‘fans’. The moderators took to calling those speculating on the crime “Facebook detectives”. One replied to Ms Gray: “Queensland Police Service: Ann Gray *sigh* Really? The third detective we have commenting on here that does not comprehend what it takes? I suggest you don’t pass judgement on something that you know nothing about!”, and then “Queensland Police Service: I am not sure ‘because it is obvious’ is suffice (sic) evidence in court, Facebook detectives. It is a matter before the courts. Enough!”

They also tried with a standard warning to commenters that was pasted into the discussion on several occasions: “Facebookers who are just joining this post, please do not speculate on this matter. Any posts which do are deleted and those who continue will be banned from our FB page. Please respect our rules. Thanks.”

One fan – Bec Mooney – suggested the police disable their comments function if they were so concerned about offensive and prejudicial material appearing, to which the police replied: “Queensland Police Service Bec Mooney – WE CAN’T DISABLE COMMENTS. Take that issue to Facebook. Even if we could, it would contradict the idea of social media.”

Do I sense a little attitude here? Clearly, the officers were getting tired and frustrated in the midst of the onslaught of the ‘lynch mob’, but surely the correspondent Ms Mooney had a valid point.

As I blogged earlier this week, Australian courts have ruled that the hosts of such fan pages are legally responsible for the comments of others on their sites and must act within a reasonable time to remove illegal or actionable material.

But they haven’t yet had to rule on a serious sub judice matter – so the key question is: How long is it reasonable for a prejudicial statement like the ‘obvious he did it’ and ‘rot in hell’ comment to remain on a public law enforcement agency’s Facebook page? It had been there 15 hours when we took our screen shot and may well still be there when you are reading this.

These rules apply to the mainstream media, and the police fan page has been so successful that it is now Queensland’s biggest publisher on some counts. Its fan base outstrips the Courier-Mail’s circulation, which peaks at 255,000 on a Saturday. And that newspaper – Queensland’s biggest – has fewer than 20,000 fans on its Facebook page. The ABC has just 91,000 nationally.

They aren’t allowed to publish this kind of prejudicial material.

Surely the police have even less excuse for hosting such comments even for a moment. The Queensland Police Service is the arresting and prosecuting authority whose job is to preserve the integrity of the justice process.

I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal – perhaps resulting in a trial being aborted at great public expense or even a verdict quashed. That would be the exact opposite of what most of these commenters and the police would want.

Social media is clearly a superb resource for police and other agencies to use to connect with their communities and to build public trust. But let’s get sensible with this.

Instead of boasting to the whole world about a high profile arrest like this one, surely the police can hold back and let the mainstream media publish their announcement just as they have done for decades. The message would still get out and at least they would not then have the headache of the avalanche of comments in response to this kind of PR announcement.

The police argue that disabling comments might “contradict the idea of social media”, but surely their hosting of prejudicial material – even for a short time – contradicts the valued right to a fair trial of those they have arrested.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.